Background
The EU wants to implement a system of alternative dispute resolution (ADR) in the EU for online purchases and service contracts concluded online. This should further promote the trade in goods and services, since from the EU's point of view, access to courts in some countries and cross-border access is too difficult or too lengthy.
In order to make ADR even easier for consumers, an EU online dispute resolution (ODR) portal should have been launched long ago. Its purpose is to establish a single point of contact for consumers to turn to when they need ADR. This portal is designed to find the right ADR entity and also provide translation services.
As of January 9, 2016
On January 9, 2016, EU Regulation No. 524/2013 (the so-called ODR Regulation) will come into force, even though the portal is not yet complete. Since an EU regulation is directly applicable law, the corresponding information requirement for online offers also applies from January 9, 2016. As a precaution, this must be assumed, even if the portal does not exist.
Scope of application
It should be noted that the EU Regulation applies not only to cross-border trade. Rather, the ODR can also be used when consumers and businesses are located in the same country. The Regulation is not relevant for business-to-business transactions that are solely between businesses.
No obligation to participate
First of all, it is certainly important to know that there is no compulsion for the company to participate in an ADR system.
What are alternative dispute resolution bodies?
As of January 7, 2016, the dispute resolution options at Shopzertifizierungssysteme and through the customer services of Amazon (for Marketplace sellers), eBay and others do not appear to be ADR bodies within the meaning of the Directive/Regulation.
This is due to the definition of an ADR entity. This definition assumes that an ADR entity must fulfill certain requirements and must be registered in a list in accordance with Art. 20 (2) of the Directive.
The German transposition law provides for an authorization requirement and a statutory instrument is planned for corresponding applications, but this is still before the Bundestag's legal committee today.
In the future, however, providers should at least make sure that their certificate provider or the operator of the sales platform has been recognized as an ADR entity. Then there could be a contractual obligation to offer this ADR system to customers.
As things stand today, we assume that there are no ADR entities within the meaning of the Directive/Regulation as yet.
Information requirements in detail
Whether or not a shop participates in an ADR scheme makes a difference in terms of the information requirements. These can be systematized as follows:
- If you do not participate in any ADR system, you only have to provide a link to the ODR platform on your website. There is no obligation to simultaneously declare that you do not participate in the system.
- However, if you have submitted to an ADR system, you must provide information about this fact in addition to the link, including the option to use it as a dispute resolution platform, and then include this information (probably additionally) in the terms and conditions.
- It is interesting that in both alternatives the Regulation emphasizes that the trader must provide an email address. This must be understood to mean that both pieces of information must be provided in a related context and ultimately serve to enable the ODR platform to contact the trader.
Currently, of course, the problem arises that the ODR platform will probably not start on schedule. It is therefore recommended on the internet in various places to point out the failure of the platform to start on January 9, 2016.
However, we wondered whether a formulation could be found today so that website operators do not have to make another change when the platform is launched.
As things stand, which in our opinion corresponds to the legal situation, even if experience shows that over time the courts sometimes interpret such ordinances differently than one might initially assume, the following two formulations seem to us to be a good starting point for online shops and service offerings. We would like to emphasize once again that both variants assume that no ADR body can be called in for the online offer.
Option 1
You can put the new mandatory information on a subpage with customer service information, warranty information, etc. (although it is already disputed whether the imprint is a suitable place) or introduce a new subpage linked from all your pages, which could be called "Complaints/Dispute Resolution":
"We do not participate in an alternative dispute resolution system within the meaning of EU Regulation No. 524/2013, but you are welcome to contact our customer service. You can reach us in all matters at xyz@xyz.de. The link to the EU platform for online dispute resolution (availability is the responsibility of the EU), which is nevertheless mandatory, can be found here."
The word "here" is then linked to http://ec.europa.eu/consumers/odr/.
2nd variant
You use the terms and conditions to convey the new mandatory information.
㤠XY Complaints/dispute resolution
1. If you have any complaints, please feel free to contact our customer service team at xyz@xyz.de. We do not participate in an alternative dispute resolution system within the meaning of EU Regulation No. 524/2013.
2. Pursuant to Article 14 (1) 1 of Regulation (EU) No. 524/2013, companies that enter into online contracts for goods or services must enable their customers to resolve consumer disputes online. The EU's online dispute resolution platform (availability is the responsibility of the EU) can be found here.
The word "here" is then linked again to http://ec.europa.eu/consumers/odr/
risk of warning letters
It has now been confirmed that a breach of obligations as of January 9, 2016 is already grounds for a written warning. The EU Regulation stipulates that the question of whether to prosecute for violations remains subject to national law, which sounds like there is a need for further implementation. However, in German law, courts are accustomed to interpreting such topics of information obligations from EU standards as a violation of competition, sometimes hastily.
Accordingly, the Munich Higher Regional Court has already ruled that the obligation to provide a link to the platform is a market conduct regulation within the meaning of Section 3a of the German Unfair Competition Act (UWG) that also serves the interests of other market participants. A violation of the linking requirement is therefore subject to a cease-and-desist letter.
In addition, a judgment of the Higher Regional Court of Koblenz, judgment of January 25, 2017 - 9 W 426/16, ruled that this obligation also applies to eBay dealers and thus not only to companies that operate an online shop under their own domain.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.